Say what you like about the Google Books Kool-Aid, but it tastes much better than Microsoft's sour grapes

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If this were a column about religious affairs, I would undoubtedly focus this week on the shocking news that Beelzebub himself has joined a coalition opposing child abuse in the Catholic church.

I’d remark upon the sheer chutzpah of El Diablo, and his glaring hypocrisy in funding a law school to investigate his sworn enemy’s practices. An investigation which, thanks to his involvement, now reeks of self-interest. Self-interest and sulphur.

But this isn’t a column about religious affairs, so I’m not going to discuss that. Instead, as this is a column (broadly) about technology, I’ll confine myself to the entirely unrelated news that Microsoft is joining a coalition to oppose Google’s settlement with the US publishing industry over Book Search. I’ll also touch on the totally unanalogous fact that they’re funding a New York Law School investigation into their biggest rival’s anti-competitive behaviour.

Avid TechCrunch readers would be forgiven for having missed this latest development in the Google Book Search saga. After all, in recent weeks this once-fiercely bipartisan publication has thrust itself headlong into an orgy of Google adulation – a veritable golden shower of fanboyism – apparently triggered by Arrington’s discovery that his Android phone is a bit better than the iPhone.

Nary a day goes by without the Dear Leader splurging more praise over his precious new handset and the undeniably paradigm-shifting fact that it allows him to use Google Voice. In that context, writing a negative story about anything happening in Mountain View might be considered at best inadvisable, at worst sacrilegious.

But as usual I’m not afraid to be the voice in the wilderness. To risk ostracism by asking the questions that need asking: namely, doesn’t Microsoft actually have a point? I mean, where the hell does Google get off criticising Apple for anti-competitive practices when they’re about to be investigated by the Department of Justice for the exact same thing?

Some background, if you need it. Back in 2005, the US book industry – as represented mainly by The Authors Guild and the Association of American Publishers – launched a class-action suit against Google over the Search God’s plans to scan the world’s books and make them searchable through Google Books.

Late last year, after millions of dollars in lawyers fees had changed hands, a settlement was agreed between the parties. Much of it was uncontroversial – a win-win, even: Google would pay a token $60 scanning fee to authors of in-copyright (US) works in return for being allowed to display short extracts of the books as part of their search results. For out-of-print books, users could also pay to download digital copies of the entire work, with a reasonably decent commission being paid to the publisher or author for each download. For in-print books, users would be referred to online retailers or libraries to buy or rent. So far, so fair.

But one aspect of the settlement wasn’t so uncontroversial, and that was the issue of so-called ‘orphan works’ – books which are still in copyright but where the identity of the copyright owner is, for one reason or another, unclear. As part of the settlement, the book industry agreed that, with certain restrictions, Google could scan orphan works without being held liable for breach of copyright claims if the rights owner subsequently came forward. In return Google agreed to create an independent (and open to all) rights registry letting authors of orphaned stake their copyright claim.

At first glance, the deal over orphaned works seems as reasonable as the rest of the settlement – these are books for which no-one is being paid and which otherwise would be hidden away in libraries and second hand bookstores. But still Google’s competitors are crying foul.

The Internet Archive is particularly annoyed, arguing that they too are scanning millions of books for the public good, but without any blanket copyright protection for orphaned works. And so, through a group they call Open Content Alliance, they hope to pressure the Department of Justice to extend the terms of the settlement to everyone, not just Google.

For the other companies joining the Alliance – including Microsoft, Yahoo and Amazon – there are more obvious and nakedly commercial reasons to oppose the settlement. But that doesn’t make their objections less valid. Back in April, Erick Schonfeld wrote a passionate – and compelling – argument for the immunity to apply to everyone so that Google wouldn’t have a monopoly position where they could effectively charge whatever they like for downloading digital copies of orphaned works.

So, yeah, Google love-in be damned – let’s ask the tough quesions. If Google really does care about making the world’s information free, surely bringing rivals into the orphaned works party is the very least they can do? Whatever happened to ‘don’t be evil’?

Yeah.

No.

Erick may be dead right in demanding the orphans be freed, but the Open Content Alliance is dead wrong in both their method and motives for making that happen. Let’s take a quick look at some of the loudest Alliance members, shall we?

First there’s Microsoft – the kings of the anti-trust violation, the monarchs of monopoly. This is a company that gave the Internet Archive ten million dollars to scan books, only to pull the plug when they realised that they couldn’t make any money from their own book search service. The truth is, Microsoft couldn’t give a damn about making information free – remember Encarta? -but they’ll stop at nothing to prevent Google from succeeding where they failed. If Google Genocide launched tomorrow, you can be sure there’d be a lawyer from Redmond whining to a judge that they should be allowed a piece of the action.

At least Amazon wears its biases on its sleeve – in March, Google signed a deal with Sony to put 500,000 public domain titles, scanned by the former, on to the latter’s e-reader device. At a stroke, Sony’s library of ebooks overtook Amazon’s (then) 250,000-strong database. And unlike Sony, which uses the open ePub standard for its titles, Amazon still insists on using its own ridiculous proprietary format. If they really were serious about making books more widely available, they could start by fixing the crappy PDF support for the Kindle.

And then there’s Yahoo. Poor old bandwagon-jumping Yahoo. Nothing to see here; let’s move on.

And yet if you look past the most vocal members of the Alliance, there are countless member organisations with bags of credibility, including thousands of libraries and universities. And there’s the Internet Archive itself, and their legal expert, Gary Reback. Both boast solid credentials – the Internet Archive has worked tirelessly, and non-commercially, to digitise out-of-copyright books, while Reback is probably the valley’s most high-profile anti-monopoly activist.

(If Reback’s name sounds familiar it’s because in the 90s he was instrumental in persuading the DoJ to investigate Microsoft for anti-trust violations – and also because in a recent interview with Michael Arrington he said that, he doesn’t think Microsoft should have been split in two because the investigation itself was enough to make the company change its ways. Apparently in Reback welcoming Microsoft into the Alliance, the enemy of his enemy is now his friend.)

All of which leads me to the real question that needs to be asked this week: what on earth are the Internet Archive and Gary Reback and the libraries, universities and other legitimate members of the Open Content Alliance thinking?

The stated aims of the Alliance – to ‘build a permanent archive of multilingual digitized text and multimedia material’ – are solid, and their position that Google’s legal immunity over orphaned works should be extended to all is laudable. But by palling around with anti-trust terrorists, self-interested champions of DRM and conflict-funded law schools, they’re undermining all of that by making themselves look like corporate shills.

If I were the Alliance’s legal advisor, I’d recommend that they leave the anti-trust nonsense to Google’s conflicted rivals and instead focus their efforts on lobbying for a change to the US Copyright Act. Google has already said that they would support a change in the law to shore up the status of their searchable rights registry and to protect all users of unregistered orphan works from breach of copyright claims.

The Alliance should be working with Google to make that change happen – and that includes Amazon who really has no business siding with a bunch of sour-grapes-fuelled anti-trust cheerleaders.

Beyond that, if I were advising the Alliance, I’d tell them to shut up about extending the settlement to all comers. Google has spent millions of dollars being forced into the deal they now have with publishers and it’s frankly ludicrous to expect them to share those hard-fought spoils with their biggest competitors.

Google Books may be a commercial enterprise, and it may be establishing a position where it can dictate terms to authors and publishers. But it also happens to be the best book search product the world has ever seen. Really, it’s incredible. And if the likes of Amazon and the Internet Archive started working with it rather than against it, it could also be the answer to rewarding book authors in a digital age, tidying up the mess of orphaned works, making books accessible to a new generation of readers and – hell – shifting a few million more e-books and e-book readers. And with a change in the law to allow everyone to exploit orphaned works, many of the anti-trust issues that Reback hates so much would vanish too. That really would be a win-win.

But of course I’m not anyone’s legal advisor; I’m just a guy who writes a technology column for money. And, as I may have mentioned before, an author. And a former co-founder of a publishing company. I mean, really this isn’t my field. I’m just glad that once again Google is in the right, and their rivals are in the wrong. The TechCrunch/Google circle jerk can continue for another week.